The coded criticisms of the Attorney-General from both the Lord Chief Justice and the Court of Appeal

17th December 2020

The office of Attorney-General is at the very crossroads of law and politics.

As a lawyer, the Attorney-General is the government’s chief legal adviser and, by convention, is the head of the Bar of England and Wales.

They superintend the Crown Prosecution Service, and they can (and do) initiate contempt of court proceedings against the media.

A further role is that they can act in proceedings where they represent the public interest and/or the government.

They also can decide to refer cases to the court of appeal where it appears a criminal court has been ‘unduly lenient’ in sentencing.

These are all important – crucial -tasks and so it follows that these roles must be taken seriously.

The Attorney-General is, however, also a politician – usually a member of parliament but sometimes a peer – and one who attends the cabinet.

It is a job therefore where the holder has to wear two hats – or horsehair wigs.

And it is not an easy task even for senior politicians and experienced lawyers.


The current Attorney-General is neither a senior politician nor an experienced lawyer.

This, of course, is not their fault – although some in this position if they were offered the office would not take it.

The current holder of the office, however, is going out of their way to politicise and thereby to discredit the legal side of the office.

This blog has previously set out how the current Attorney-General should have resigned when they unapologetically tweeted in respect of a case of a political ally who was then subject to a live police investigation.

That really was not what the superintendent of the Crown Prosecution Service should be doing.


There is now a further example of how the current Attorney-General is undermining their office.

Here there are three texts that are of interest.


First, here is a Daily Express article from 7th November 2020: Attorney General to appear at Andrew Harper’s killers appeal hearing next week.

In the body of that article, under the byline of a political editor, was the following:

‘A friend of Ms Braverman’s told the Sunday Express:

‘“She was met with strong opposition from civil servants to pursue this case but she held firm and has done the right thing.

‘“She made it clear she wants to be there to underline how important this issue is to the ‘government and how seriously it takes this case.

“If the judges uphold the original sentences then she will have still done the right thing and it will be another example of wet, liberal judges being soft on criminals.”’

As is widely known, ‘friend’ is a code in political journalism for either the politician themselves or someone speaking on their behalf, such as a special adviser.

As far as I am aware, this quote has not been disavowed by the Attorney-General.


Second, here is a speech on sentencing by the Lord Chief Justice made on 9th December 2020.

Here are two paragraphs from this informative and accessible speech (asterisk and emphasis added):

‘Were the mythical alien to arrive on earth and, I grant you yet more improbably, take an interest in sentencing in England and Wales by reading the newspapers and dipping into the more noisy parts of on-line media, it would soon gain the impression that sentencing had got softer in recent years. It would read about “wet, liberal judges being soft on criminals” (*) and wonder why criminals convicted of serious offences were getting more lenient sentences than they used to. Then our alien visitor might seek some other sources of information, and if possessed of a brow it might become furrowed.

‘There is a difficulty with this narrative. It is a myth.’

The Lord Chief Justice then proceeds in his speech to demonstrate how sentencing has certainly not got softer.

But who was the judge quoting about “wet, liberal judges being soft on criminals” ?

The quotation is footnoted (where I have inserted the asterisk), and the footnote reads:

‘Sunday Express 8 November 2020, quoting a source.’

The Lord Chief Justice is here publicly dismissing – perhaps even deriding – the ‘friend’ of the Attorney-General who in turn is describing the Attorney-General’s motivation for intervening in a criminal sentencing case.

For the head of the judiciary to be doing this openly to the government’s chief legal adviser and holder of the ancient office of Attorney-General is an extraordinary public intervention.


And now we turn to the Court of Appeal judgment in respect of the sentencing of those who killed the police constable Andrew Harper.

The facts of the case are horrific.

Three were convicted of manslaughter, though a jury acquitted them of murder.

And so the three were sentences in accordance with the guidelines for manslaughter.

The Attorney-General, as the Daily Express article describes, exercised one of their powers and referred the sentences to the court of appeal on the basis of the sentences being ‘unduly lenient’.

The Attorney-General then – oddly for a barrister with no substantial criminal law background – appeared personally at the hearing.

There are three paragraphs of the judgment of interest in respect of the contribution and role of the Attorney-General.

Paragraph 57:

‘In her initial remarks, the Attorney General rehearsed some of the facts and said that the sentences have caused widespread public concern. She outlined four points, about which Mr Little QC then made submissions.’

Here the court are not even deigning to describe the Attorney-General’s contribution as submissions – a ‘submission’ is something one submits to the court for consideration – but merely as remarks.

(The Supreme Court adopted a similar remarks/submission distinction when a former Attorney-General appeared (out of his depth) at the first Miller case: ‘Following opening remarks made by HM Attorney General, Mr Eadie QC in his submissions on behalf of the Secretary of State, did not challenge much if any of the factual basis of these assertions…’ – paragraph 57 here.)

We now turn to the submission that were made, if not personally by the Attorney-General, but by another barrister on their behalf.

Paragraph 83 (emphasis added):

As to the length of the custodial terms, we note a striking feature of the submissions. When applications are made by the Attorney General for leave to refer to this court sentences which are said to be unduly lenient, it is frequently on the basis that the judge fell into error by failing to follow a relevant guideline. In this case, however, the argument advanced by the Attorney is that the sentence of Long, and therefore the sentences on Bowers and Cole, were unduly lenient because the judge erred in failing to depart from the relevant guideline.

Just as political journalists have their codes, so too do judges.

And to describe as position as ‘striking’ is to say that it is barking – and the rest of the paragraph explains why.

In essence: unduly lenient sentences are those which depart from the guidelines and not those made in accordance with them.

This is then followed by paragraph 84 (again emphasis added):

‘That is, to say the least, an unusual submission. It involves the proposition that in the circumstances of this case, a sentence within the guideline offence range was not within the range properly open to the judge, who was instead required to pass a sentence outside that range. We think it regrettable that, in advancing that submission, the structure and ambit of the guideline were not addressed. Nor was any sufficient explanation given why it is contended that the judge was not merely entitled to depart from the guideline but positively required to do so.’

Here ‘unusual’ means, in effect, beyond barking – and again the rest of the paragraph sets out why.

These are obvious points and would have been plain to government lawyers.

But as ‘friend’ of the Attorney General said, ‘[s]he was met with strong opposition from civil servants to pursue this case’.

And paragraphs 83 and 84 set out why.


Taking these three texts together we can see that the judiciary are alert to the motivations of the Attorney-General and are resistant to the attempts to politicise the office, and that the judiciary will be unafraid to reject ‘striking’ and ‘unusual’ submissions made on behalf of the Attorney-General.

The judges are not stupid or unworldly – they know exactly the import of coded criticisms in public speeches and judgments.

The Attorney-General may be sending signals, but so are the judges.


But this Attorney-General will not care.

The political job is done – and one can imagine the claps and cheers of the ‘friend’ quoted in the Daily Express article. 

She took on the ‘wet, liberal judges being soft on criminals’.

But this political job has been done at a cost.

Although a politician, the Attorney-General is entrusted with highly important decisions in respect of not only referring ‘unduly lenient’ sentences, but also in respect of many other legal matters, from contempt of court to the operation of the crown prosecution service.

But the conduct of the current Attorney-General is such that their credibility as a decision-maker capable of making such decisions on the appropriate basis is open to doubt.

This quick win for a political ambitious Attorney General is at the cost of the standing of their office.

The Attorney-General is weaponising her legal responsibilities for political purposes.

This is a remarkable, striking and unusual predicament.

And given that the Attorney-General is not only doing this recklessly but with apparent enthusiasm means that there is no reason for anyone watching it happen in real time to be unduly lenient.


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9 thoughts on “The coded criticisms of the Attorney-General from both the Lord Chief Justice and the Court of Appeal”

  1. A superb analysis. A pity that the AG will be tone deaf to the criticisms in the judgment. And we already have “commentators” (such as Andrew Pierce on Twitter) criticising the judges. As a recently retired teacher of criminal law I can say that the outcome in this appeal was highly predictable. The Court of Appeal is careful not to allow public opinion to override its duty to apply the law. Just because, for example, the defendants in this case were pilloried in the press for (reportedly) smirking as they left court does not mean that they should be treated in a way which does not accord with the sentencing guidelines.

    The AG’s decision to refer the case at all was a simple abrogation of responsibility. It was a simple way to pass “sentencing blame” on to the Court of Appeal. Her decision to appear herself was a publicity stunt and also misguided. If her actions raised the hopes of Mr Harper’s widow then it was cynical in the extreme.

  2. Re “a speech on sentencing of the Lord Chief Justice”

    Could this improved by
    “a speech by the Lord Chief Justice on sentencing “.

    It would stop me wondering what sentence the Lord Chief Justice received.

  3. A very interesting and thoughtful analysis.

    I had followed the case in the “serious” media and what happened was truly horrific. I can understand the family’s anger and pain, but the manslaughter verdict (to me, as a layman) suggests that the death of PC Harper was unintended. I think mandatory whole life tariffs (such as the family wanted for the unlawful death of any serving police officer) are never a good solution and that the judiciary already has ample scope for finding the correct punishment.

    What is interesting here is that this sub-standard AG chose this case to attack ‘wet, liberal judges being soft on criminals’ – it would seem to be a wholly inaccurate description. I am not sure how much lattitude a judge has in a jury trial, with sentencing guidelines in force, to be a ‘wet, liberal judge(s) being soft on criminals’. It is a slur that this deluded right-wing administration have bandied about against lawyers in the UK who “champion” causes that the current cabal object to – might it be that the AG is unable to spot the difference between a judge and a lawyer??

  4. Hi David,

    Nice post as ever. I am left wondering a bit about the difference between remarks and submissions, because the submissions would have been made by the QC instructed by SB. Is there some eye-brow raising going on there, I wonder? They do not go as far as saying the submissions should not have been made as not being arguable, which would have been a breach of the Bar Code, but they do seem to say they are incomplete (this bit, “We think it regrettable that, in advancing that submission, the structure and ambit of the guideline were not addressed. Nor was any sufficient explanation given why it is contended that the judge was not merely entitled to depart from the guideline but positively required to do so.”).

    I might be imagining it of course. But it may be a little bit of a gentle warning to the barrister concerned???

    I also wondered if it was unusual for Wright or Braverman to appear? Is this a new phenomenon?? I genuinely have no idea.

  5. It used to be common for the Attorney General and Solicitor General to appear in court in person and argue substantial cases themselves decades ago, when they were typically barristers with the appropriate level of experience.

    (It wasn’t that long ago when the Lord Chancellor would sit regularly as a judge in the House of Lords. I think Derry Irvine was the last, but can you imagine Chris Grayling, Michael Gove, or Liz Truss, on the woolsack in a full-bottomed wig, hearing and delivering judgments in substantial legal cases?)

    It is much less common nowadays, as they are typically more politicians than lawyers, and these ones are plainly well out of their depth as court advocates, which it why the limit themselves to delivering introductory “remarks” largely for political purposes, to demonstrate how seriously they take these matters, rather than in any real attempt to influence the judicial decision making process.

    A barrister humbly submits a point to the puissant decision maker (the judge, normally) for consideration in the formulation of their decision. The judge may accept the submission in full or in part, or reject it.

    I would say a “remark” is just a statement of fact or opinion that does not go towards the legal decision being made. (“Thank you for your remarks. What is your submission on that?”)

    In this case, the Attorney General was making a general statement – this is an awful case, and Something Must Be Done – but that is not a submission with any legal content. I suspect the grown-up on the prosecution team, Tom Little QC, knew there was little chance of success. It is rather demeaning to see criminal proceedings being used to send a political message in this manner.

    As it happens, judges make remarks quite often too: you could see most of paragraph 63 as prefatory throat-clearing “remarks”. “No one doubts the seriousness of the offending in this case. No one doubts the importance of the fact that the victim was a police officer engaged in performing his duty in the service of the public. No one doubts the gravity of the harm …”

    The important point was left for the last sentence of paragraph 63 . “The issues before this court must however be resolved in accordance with the law.” (Not, one might add, public opinion or political grandstanding.)

    What the lengthy Court of Appeal judgment does underline is how a judge’s sentencing power is tightly circumscribed by a layering of different legal provisions and mandatory guidance. All of that is determined by politicians or people acting at their behest. If the politicians think the 2018 sentencing guidelines are too soft, they can say so. The trial judge clearly accepted this was a manslaughter case of the most serious nature, within category A, with a starting point of 18 years’ custody, and a range of 11 to 24 years. In the usual way, he looked for aggravating factors, pushing the starting point up to 20 and 24 years, and then applied mitigating factors.

    The only question for the Court of Appeal (on the AG reference) was whether the judge was following all of that law and guidance in reaching a sentence within the reasonable range, or was it manifestly outside the range. The judge started at the top of the guideline range and adjusted accordingly, so it was almost inevitable the sentence would be upheld. (I wonder if the Court of Appeal would have overturned a life sentence for manslaughter in this case, if the judge had considered it appropriate in the circumstances: that would be outside the guideline range, but is it manifestly excessive?)

    The judgment also makes it clear quite how difficult it was in this case to work out how long the driving disqualifications should last, which again goes to a mosaic of overlapping legislation, mainly because the politicians keep tinkering away. It shouldn’t take half a dozen lawyers two or three goes to work out the correct sentence. Simplifying and rationalising the criminal law is, surely, something the politicians can work on. As well as providing the courts (and the CPS, and the police) with sufficient resources to work in an efficiently and timely, but most importantly just, basis through their lengthening backlog of criminal cases.

  6. “‘“She was met with strong opposition from civil servants to pursue this case but she held firm and has done the right thing.””

    If the Attorney was determined to do the right thing, presumably the Attorney’s ‘friend’ believes that her civil servants wanted to do the wrong thing.

    I’m aware from my prosecuting days that the Attorney’s criminal law team is small – a handful of lawyers and paralegals – and this case would have been handled by one or two civil servants at the most. Does a good boss talk shit in the media about the (correct) judgement of individuals who she will know on a first name basis? I’d have thought not, which makes me wonder whether there is anything the Attorney is good at.

  7. Judges must always have been frustrated by politicians’ press baiting.

    That senior judges are so moved as to respond, indicates how low our so-called government has sunk.

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